Surely even the most beholden-to-commercial-interests jurists on the American bench can see that it is not in Congress's power to grant perpetual copyrights.
I'm still hoping for a sufficiently originalist bench that the current system gets tossed as unconstitutional -- the point of the Copyright Clause was to grant exclusive rights to authors, not to their estates not to publishers. The Founders were thinking of the Statute of Queen Anne that ended the practice of the Crown granting copyrights to publishers and only allowed their grant to authors (for 14 years, renewable for another 14 years at the request of the author) which they promptly copied in American law during the First Congress under the Constitution.
I'm glad to see the idea I've floated that the copyright clause specifies "authors" and that the current system is in violation of the plain meaning of the US Constitution is getting some traction with TechDirt writers. (Reread the last paragraph of the article if you missed that.)
Whenever I have pointed it out, someone chimes in with a "well that's not the way things are now" non-argument against the unconstitutionality of the present system.
We supposedly have an originalist majority on the SCOTUS now, maybe it's time for someone to mount a challenge?
What makes you even think that might happen? I refer you to the censorship, yes, that's the right word in this context, of any mention of the New York Post story about Hunter Biden's laptop by Facebook and Twitter in the run up to the 2020 presidential election. (See Glenn Greenwald's Substack for details.) No RIAA or MPAA pressure, just tech execs enforcing their own political preferences on the content they host via their "content moderation" powers under Section 230. Nor was there any pressure from copyright maximalists in the destruction of a platform that was committed to open and free speech, Parler, by a conspiracy of Google, Apple and Amazon.
The problem with understanding Section 230 comes from people thinking in intuitive moral terms, rather than as lawyers:
The moral justification for shielding platforms from liability is that they are not responsible for what people post on them, the same way a telephone service provider is not responsible for what people say on the phone. But, it allows content moderation, which means that if something stays up on a platform it has some sort of approval by the platform operator, which to an ordinary person removes their lack of responsibility for what is on their platform.
Understanding this might actually be a guide to any reforms that could gain general acceptance: laws which comport with the public's moral sense are generally accepted, while laws which offend it are often objected to or even resisted.
This article seem a good place to remind one and all that the Law of Queen Anne, the first modern copyright law, which established the 14 years renewable for 14 years pattern, was a reform that prevented the granting of monopolies to publishers by the Crown, a common practice before 1710. It was this law that the American Founders had in mind when the granted Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." And it was the terms of the Law of Queen Anne that were copied by the first American copyright statute.
Quite frankly, if we had a majority on the SCOTUS that actually believed in strict constructionism and original intent in interpreting the Constitution, the current life-plus copyright statutes and the entire practice of completely alienating rights from the author and granting them to the publisher could be declared unconstitutional, much to the benefit of actual authors and artists.
(1) Forbid the police from being unionized.
(2) Give ordinary cops as much deescalation training as soldiers with police powers (MPs) get.
(3) Give cops rules of engagement as restrictive as we give soldiers in counter-insurgency theaters.
(4) Have cops who kill unarmed civilians in breach of the rules of engagement face consequences as serious as soldiers face if they kill a non-combatant by breaching their rules of engagment.
(5) Get all HR departments (including, or rather especially, those hiring for police and other public safety positions) to regard a discharge from a police force for cause as as dark a blot on one's record as a dishonorable discharge from the military.
I think the notion that the Biden administration wants there to be alternatives to Big Tech is ill-founded. "Being tough on Big Tech" in this context should be understood as bending Big Tech to the will of the State, not breaking up Big Tech, fostering competing "small Tech", engendering transparency or anything else which would be salutary to the internet as a modern agora. Remember who cheered the destruction of Parler.
...in as much as a dismissal for cause from a police force should be as black a blot on one's employment record as a dishonorable discharge from the military.
Oh, there are other ways, too: not being allowed to unionize, ordinary cops getting as much de-escalation training as MPs get, rules of engagement as strict as we give soldiers in counter-insurgency theaters, and the equivalent of a court-martial for killing someone by breaching those rules of engagement.
Spot on. The police should be more like the military: rules of engagement as restrictive as those we give soldiers in counter-insurgency theaters, consequences as serious as those applied to soldiers or marines who kill non-combatants by breaching those rules of engagement. That and no right to unionize. Those can be applied by legislation.
We also need a cultural shift to regard discharge for cause from a police force as a blot as black as a dishonorable discharge from the military.
I hope you realize that there is a serious move afoot in the more well-read reaches of the internet to reclaim the word "fascist" to describe political programs analogous to what actual Fascists did and advocated, rather than let if remain a meaningless pejorative to apply to whoever is opposing whatever happens at the moment to be called "the left".
You know, things like not objecting to wealth disparities so long as the rich back the party's program, getting corporations to serve as enforcers, having black-shirted thugs beat up political opponents, . . .
Just an amusing personal story from the early days of the internet:
There came a point in the early '90's when I realized I'd need to have a webpage, and thus would need to learn HTML. I picked up an HTML manual and realized I already knew it.
How could that be?
Well, when I finished my mathematics PhD in 1984, there was no decent way of using TeX on any personal computer, but there was a wonderful typesetting and layout program adapted to typesetting mathematics available for the Apple II called The Guttenberg WordProcessor. I'd bought a copy so I could typeset my research papers. Its native code was essentially identical the HTML 1.0 -- the only real differences were the <html> tag and tags for making hyperlinks.
(1) Their rules of engagement should be as restrictive as those we give combat troops in counter-insurgency theaters.
(2) Killing a civilian by acting in breach of the rules of engagement should be as harshly punished in the police as it is in the military.
(3) Being discharged from a job with the police for cause should be as dark a blot on one's employment record as a dishonorable discharge from the military.
(4) They should all have to undergo the same amount of descalation training that MPs undergo.
I leave the reader, especially those who have actually served in the military as I have not, to supply more ways in which making the police more like the military would simultaneously improve the quality of policing and protect Americans' lives and civil liberties.
Okay, who really owns ThinkMobile? They must have been around a long time if they have a copyright on "outstanding". When I was a child in the 1960's there was the gag about a farmer being outstanding in his field.
A patent on this? The submission better have a lot of detail on exactly how it is to be done, otherwise wouldn't the Black Mirror episode suffice as an example of prior art to invalidate the patent? I seem to recall the tablets on Star Trek: the Next Generation being successfully invoked as prior art against a design element patent (rectangular with rounded corners) for tablet devices in the real world.
You write "not all 'thoughts' or 'beliefs' are equal or deserve equal treatment or consideration."
Yes, but who decides which thoughts are merely 'thoughts' and which beliefs (or 'beliefs') are not deserving of equal treatment or consideration? What used to be called the "liberal" view was that each human being got to decide that, not strictly on their own, but in conversation with others (even those long dead, whose writings survive) and society as a whole. In America, many conservatives, interested in conserving the American Founding, subscribe to this view, as did, until recently most self-described liberals and progressives.
Now, we are told by a new high-priesthood, that what for the vast sweep of human history would have been an unexceptional view -- that biological sex is an important reality, and that segregating latrines, prisons and athletic competitions on its basis is a benefit to women -- is "bigotry" and not worthy of consideration because the latest cause celebre, that people who are unhappy with their biological sex, and either wish to be the opposite sex, or are under the delusion that they are, are "excluded" from facilities on the basis of the age-old separation not by "gender" but by sex. (If you don't understand why this is not bigotry, biologically female humans, what we used to call "women" without any ambiguity of meaning, who run competitively or who have been imprisoned after commission of a crime can explain to you why the biological segregation makes sense on the basis of their lived experience.) Tech companies try to prevent books based on this view from selling.
Now the same high-priesthood tells us that qualms about the propriety of the 2020 U.S. Presidential election are beyond the pale and must be censored, but qualms about the propriety of the 2016 U.S. Presidential election (cf. Hilary Clinton's recent remark "we still don't know what happened in 2016") are acceptable. Tech companies shut down fora in which the former qualms are aired frequently, and allow the latter to circulate freely.
I could go on with other matters, but you see the point. It suffices to regard all thoughts and beliefs (no scorn quotes, please) opposed to the consensus of the bien pensants of Silicon Valley on the basis of historically believed positions to be "conservative" for @Killer Marmot's point to stand.
I think if the police want military-style hardware, they really should be more like the military:
They should not be unionized.
They should undergo similarly rigorous training.
Their rules of engagement should be as restrictive as those we give soldiers fighting in counter-insurgencies, with similar consequences for violating them.
Police officers found to have wrongly killed or assaulted a civilian should be subject to as harsh of discipline as soldiers found to have wrongly killed a civilian in similar circumstances.
Being discharged from a police force for cause should be as dark a blot on one's employment record as a dishonorable discharge from the military.
Two examples from mathematics show there is no need for commercial publishers collecting monopoly rents to organize peer review: Theory and Applications of Categories is the preeminent journal in category theory. It is free to publish in, free to download content from, and peer-reviewed by the same sort of volunteer editors and labor used by commercial publishers. Also operating on the same model is Algebraic and Geometric Topology, the original editorial board of which had been the editorial board of one of the preeminent topology journals, Topology until they resigned en masse over the predatory practices of it new owners, Elsevier.
Every academic discipline and subdiscipline could have journals of this sort simply by the university employing a notable figure in the field agreeing to provide server space.
There is a lot more money in the natural sciences than in mathematics, and even more in biomedical science, but there is no reason that money should be going to commercial publishers who no longer actually provide added value as they did decades ago when getting research on the page required the use of movable type (or more recently a linotype machine) and printing presses, and mass distribution of research results required mass mailings.
The example of the entire editorial board of Topology resigning, thereby robbing the Elsevier journal of its prestige, and forming a free online journal, peer-reviewed under the direction of the same editors, Algebraic and Geometric Topology, could be replicated throughout academe. The editors of Nature could do the same: all that's needed is one of their institutions to agree to provide server space.
Of course Sci-Hub and the like are threats to the scholarly communications ecosystem -- that ecosystem currently includes a robust species of parasite, known by the common name "commercial academic publishers", which could go extinct. The parasites evolved from a species known by the same common name which before the advent of LaTeX and the internet had a symbiotic relation with academicians, organizing peer review, beautifully typesetting accepted works and distributing it to other academicians. As the latter two functions in the symbiosis became useless to the hosts with the new environmental conditions, the symbiotes became parasitic, with an increasingly voracious appetite for monopoly rents.
The Copyright Clause
Surely even the most beholden-to-commercial-interests jurists on the American bench can see that it is not in Congress's power to grant perpetual copyrights.
I'm still hoping for a sufficiently originalist bench that the current system gets tossed as unconstitutional -- the point of the Copyright Clause was to grant exclusive rights to authors, not to their estates not to publishers. The Founders were thinking of the Statute of Queen Anne that ended the practice of the Crown granting copyrights to publishers and only allowed their grant to authors (for 14 years, renewable for another 14 years at the request of the author) which they promptly copied in American law during the First Congress under the Constitution.
The Copyright Clause
I'm glad to see the idea I've floated that the copyright clause specifies "authors" and that the current system is in violation of the plain meaning of the US Constitution is getting some traction with TechDirt writers. (Reread the last paragraph of the article if you missed that.)
Whenever I have pointed it out, someone chimes in with a "well that's not the way things are now" non-argument against the unconstitutionality of the present system.
We supposedly have an originalist majority on the SCOTUS now, maybe it's time for someone to mount a challenge?
Re:
Hmm... How do you square your view with the Supreme Court precedent set by Marsh v. Alabama?
Re: I wonder
What makes you even think that might happen? I refer you to the censorship, yes, that's the right word in this context, of any mention of the New York Post story about Hunter Biden's laptop by Facebook and Twitter in the run up to the 2020 presidential election. (See Glenn Greenwald's Substack for details.) No RIAA or MPAA pressure, just tech execs enforcing their own political preferences on the content they host via their "content moderation" powers under Section 230. Nor was there any pressure from copyright maximalists in the destruction of a platform that was committed to open and free speech, Parler, by a conspiracy of Google, Apple and Amazon.
Why Section 230 is hard to understand.
The problem with understanding Section 230 comes from people thinking in intuitive moral terms, rather than as lawyers:
The moral justification for shielding platforms from liability is that they are not responsible for what people post on them, the same way a telephone service provider is not responsible for what people say on the phone. But, it allows content moderation, which means that if something stays up on a platform it has some sort of approval by the platform operator, which to an ordinary person removes their lack of responsibility for what is on their platform.
Understanding this might actually be a guide to any reforms that could gain general acceptance: laws which comport with the public's moral sense are generally accepted, while laws which offend it are often objected to or even resisted.
Just a reminder of the original intent of the Copyright Clause
This article seem a good place to remind one and all that the Law of Queen Anne, the first modern copyright law, which established the 14 years renewable for 14 years pattern, was a reform that prevented the granting of monopolies to publishers by the Crown, a common practice before 1710. It was this law that the American Founders had in mind when the granted Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." And it was the terms of the Law of Queen Anne that were copied by the first American copyright statute.
Quite frankly, if we had a majority on the SCOTUS that actually believed in strict constructionism and original intent in interpreting the Constitution, the current life-plus copyright statutes and the entire practice of completely alienating rights from the author and granting them to the publisher could be declared unconstitutional, much to the benefit of actual authors and artists.
How about we really make the police more like the military?
(1) Forbid the police from being unionized.
(2) Give ordinary cops as much deescalation training as soldiers with police powers (MPs) get.
(3) Give cops rules of engagement as restrictive as we give soldiers in counter-insurgency theaters.
(4) Have cops who kill unarmed civilians in breach of the rules of engagement face consequences as serious as soldiers face if they kill a non-combatant by breaching their rules of engagment.
(5) Get all HR departments (including, or rather especially, those hiring for police and other public safety positions) to regard a discharge from a police force for cause as as dark a blot on one's record as a dishonorable discharge from the military.
Alternatives
I think the notion that the Biden administration wants there to be alternatives to Big Tech is ill-founded. "Being tough on Big Tech" in this context should be understood as bending Big Tech to the will of the State, not breaking up Big Tech, fostering competing "small Tech", engendering transparency or anything else which would be salutary to the internet as a modern agora. Remember who cheered the destruction of Parler.
Our police should be like the military...
...in as much as a dismissal for cause from a police force should be as black a blot on one's employment record as a dishonorable discharge from the military.
Oh, there are other ways, too: not being allowed to unionize, ordinary cops getting as much de-escalation training as MPs get, rules of engagement as strict as we give soldiers in counter-insurgency theaters, and the equivalent of a court-martial for killing someone by breaching those rules of engagement.
Re: Re:
Spot on. The police should be more like the military: rules of engagement as restrictive as those we give soldiers in counter-insurgency theaters, consequences as serious as those applied to soldiers or marines who kill non-combatants by breaching those rules of engagement. That and no right to unionize. Those can be applied by legislation.
We also need a cultural shift to regard discharge for cause from a police force as a blot as black as a dishonorable discharge from the military.
Re: Left-wing fascism
Sure, get your lulz.
I hope you realize that there is a serious move afoot in the more well-read reaches of the internet to reclaim the word "fascist" to describe political programs analogous to what actual Fascists did and advocated, rather than let if remain a meaningless pejorative to apply to whoever is opposing whatever happens at the moment to be called "the left".
You know, things like not objecting to wealth disparities so long as the rich back the party's program, getting corporations to serve as enforcers, having black-shirted thugs beat up political opponents, . . .
On learning HTML
Just an amusing personal story from the early days of the internet:
There came a point in the early '90's when I realized I'd need to have a webpage, and thus would need to learn HTML. I picked up an HTML manual and realized I already knew it.
How could that be?
Well, when I finished my mathematics PhD in 1984, there was no decent way of using TeX on any personal computer, but there was a wonderful typesetting and layout program adapted to typesetting mathematics available for the Apple II called The Guttenberg WordProcessor. I'd bought a copy so I could typeset my research papers. Its native code was essentially identical the HTML 1.0 -- the only real differences were the <html> tag and tags for making hyperlinks.
Ways the police *should* be more like the military
The cops want to be like the military do they?
Fine, let's make them more like the military:
(1) Their rules of engagement should be as restrictive as those we give combat troops in counter-insurgency theaters.
(2) Killing a civilian by acting in breach of the rules of engagement should be as harshly punished in the police as it is in the military.
(3) Being discharged from a job with the police for cause should be as dark a blot on one's employment record as a dishonorable discharge from the military.
(4) They should all have to undergo the same amount of descalation training that MPs undergo.
I leave the reader, especially those who have actually served in the military as I have not, to supply more ways in which making the police more like the military would simultaneously improve the quality of policing and protect Americans' lives and civil liberties.
Outstanding in their field
Okay, who really owns ThinkMobile? They must have been around a long time if they have a copyright on "outstanding". When I was a child in the 1960's there was the gag about a farmer being outstanding in his field.
Prior art?
A patent on this? The submission better have a lot of detail on exactly how it is to be done, otherwise wouldn't the Black Mirror episode suffice as an example of prior art to invalidate the patent? I seem to recall the tablets on Star Trek: the Next Generation being successfully invoked as prior art against a design element patent (rectangular with rounded corners) for tablet devices in the real world.
Re: Depends on how you're defining 'conservative'
You write "not all 'thoughts' or 'beliefs' are equal or deserve equal treatment or consideration."
Yes, but who decides which thoughts are merely 'thoughts' and which beliefs (or 'beliefs') are not deserving of equal treatment or consideration? What used to be called the "liberal" view was that each human being got to decide that, not strictly on their own, but in conversation with others (even those long dead, whose writings survive) and society as a whole. In America, many conservatives, interested in conserving the American Founding, subscribe to this view, as did, until recently most self-described liberals and progressives.
Now, we are told by a new high-priesthood, that what for the vast sweep of human history would have been an unexceptional view -- that biological sex is an important reality, and that segregating latrines, prisons and athletic competitions on its basis is a benefit to women -- is "bigotry" and not worthy of consideration because the latest cause celebre, that people who are unhappy with their biological sex, and either wish to be the opposite sex, or are under the delusion that they are, are "excluded" from facilities on the basis of the age-old separation not by "gender" but by sex. (If you don't understand why this is not bigotry, biologically female humans, what we used to call "women" without any ambiguity of meaning, who run competitively or who have been imprisoned after commission of a crime can explain to you why the biological segregation makes sense on the basis of their lived experience.) Tech companies try to prevent books based on this view from selling.
Now the same high-priesthood tells us that qualms about the propriety of the 2020 U.S. Presidential election are beyond the pale and must be censored, but qualms about the propriety of the 2016 U.S. Presidential election (cf. Hilary Clinton's recent remark "we still don't know what happened in 2016") are acceptable. Tech companies shut down fora in which the former qualms are aired frequently, and allow the latter to circulate freely.
I could go on with other matters, but you see the point. It suffices to regard all thoughts and beliefs (no scorn quotes, please) opposed to the consensus of the bien pensants of Silicon Valley on the basis of historically believed positions to be "conservative" for @Killer Marmot's point to stand.
Do cops really want to be like the military?
I think if the police want military-style hardware, they really should be more like the military:
They should not be unionized.
They should undergo similarly rigorous training.
Their rules of engagement should be as restrictive as those we give soldiers fighting in counter-insurgencies, with similar consequences for violating them.
Police officers found to have wrongly killed or assaulted a civilian should be subject to as harsh of discipline as soldiers found to have wrongly killed a civilian in similar circumstances.
Being discharged from a police force for cause should be as dark a blot on one's employment record as a dishonorable discharge from the military.
Re: SciHub IS a problem
Two examples from mathematics show there is no need for commercial publishers collecting monopoly rents to organize peer review: Theory and Applications of Categories is the preeminent journal in category theory. It is free to publish in, free to download content from, and peer-reviewed by the same sort of volunteer editors and labor used by commercial publishers. Also operating on the same model is Algebraic and Geometric Topology, the original editorial board of which had been the editorial board of one of the preeminent topology journals, Topology until they resigned en masse over the predatory practices of it new owners, Elsevier.
Every academic discipline and subdiscipline could have journals of this sort simply by the university employing a notable figure in the field agreeing to provide server space.
Academicians can fix this problem
There is a lot more money in the natural sciences than in mathematics, and even more in biomedical science, but there is no reason that money should be going to commercial publishers who no longer actually provide added value as they did decades ago when getting research on the page required the use of movable type (or more recently a linotype machine) and printing presses, and mass distribution of research results required mass mailings.
The example of the entire editorial board of Topology resigning, thereby robbing the Elsevier journal of its prestige, and forming a free online journal, peer-reviewed under the direction of the same editors, Algebraic and Geometric Topology, could be replicated throughout academe. The editors of Nature could do the same: all that's needed is one of their institutions to agree to provide server space.
Threats to ecosystems
Of course Sci-Hub and the like are threats to the scholarly communications ecosystem -- that ecosystem currently includes a robust species of parasite, known by the common name "commercial academic publishers", which could go extinct. The parasites evolved from a species known by the same common name which before the advent of LaTeX and the internet had a symbiotic relation with academicians, organizing peer review, beautifully typesetting accepted works and distributing it to other academicians. As the latter two functions in the symbiosis became useless to the hosts with the new environmental conditions, the symbiotes became parasitic, with an increasingly voracious appetite for monopoly rents.
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